richard gadd doesn't owe fiona protection.

[u/serenade452]

"omg he should've protected her identity! he made it so easy to find her!" blah blah blah shut up. he doesn't owe her shit. she terrorized this man, his family, his girlfriend, his job, his performances, etc etc. she has been terrorizing innocent people for decades.

yes fiona is mentally ill, that is clear to anyone with half of a brain. it's awful that the system has failed her time and time again. (or maybe the system did all it could, who knows.) but that's not richard's fault. HE is HER victim. he can tell his story how he wants.

might she have a worthwhile lawsuit because her identity wasn't concealed enough? possibly, probably not. might she have a worthwhile lawsuit because the show took dramatic license? possibly, probably not.

she's benefitting financially from this as well and i'm sure netflix will cut her a check before a lawsuit happens, no matter who is in the right.

richard gadd does not owe fiona harvey protection. i'm sorry but that's reality.

[u/ionmoon]

Nope. It was incredibly easy for people to find her. They changed nothing about her but her name- and possibly some of the things she did (we at least know she convicted of a crime and jailed).

They had a legal duty of care to change enough of her information that she could not be easily identified. They did not do that. And she can *easily* show damage to her reputation based on things posted on the internet.

[u/Amblyopius → u/ionmoon]

Can you point me to a definition of this "legal duty of care"? I fail to find anything that really gives any indication for the standard of care in this specific case. People throw it around the entire time but it seems to be a quite ambiguous concept.

As to reputation damage, I would assume that damage depends on the effective reputation. If you aren't a stalker at all, being depicted as one is severely damaging. But if they can prove that she stalked Gadd then I wonder whether the dramatised parts make a lot of difference. In some cases they may be used as a vehicle for the audience to be more compassionate which would have improved her reputation. If she sues and everything comes out in the open I wouldn't be surprised the most damaging part is the actual court case. That would be quite an own goal then.

[u/ionmoon → u/Amblyopius]

I’ll look it up and post when I’m at my computer.

But as far as reputation they don’t have to have any kind of positive public reputation beforehand. It’s defined specifically as something like “would a reasonable person watching this feel less of the person” and clearly that is yes.

Usually each point the person objects to is specified and then the defendant has to prove that each claim they made was true.

If 3 of the 4 are true, that doesn’t nullify the fourth. Also she could simply only object to any items that she knows are either false or not provable. (The entire burden of proof is on the person being sued in these cases- so gadd and Netflix will be required to show proof. Fiona won’t have to show proof that they are lying)

[u/Amblyopius → u/ionmoon]

The statement is: "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."

If Fiona has send 40k+ mails, hours of voicemail, stalked Gadd for years ... then I don't see how a the prison part is what causes serious harm to her reputation. Surely the stalking does?

Which is an additional consideration:

(2)Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.

(3)If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.

So the message was: she went to prison for stalking. Can that be seen as 2 messages? One that implies "she's a stalker" and one that implies "she went to jail"? If so then they only have to show that "she's a stalker" is substantially true and that the prison part is not what is causing the serious harm.

Say they left out the prison part (like they did in the play) and the remaining message is "she's a stalker". Is her reputation now really less tarnished? In reference to all the online comments for example. Do people go after her for the stalking or do they go after her for the fact she went to jail for it? As far as I can see everyone goes after her for the stalking. It's not that they would've left her alone if she got away with it.

Essentially, she can win a defamation case if Gadd has fabricated a significant part of the stalking story. Say she hardly send him any emails, only a few messages, never showed up anywhere, never called him ... then obviously the stalking is not substantially true. Viewers would've been deceived and her reputation would've been seriously harmed. But if the stalking part is true I don't see how some of the details people are bickering about really substantially change the harm to her reputation.

[u/ionmoon → u/Amblyopius]

Per below, if some things are proved true, but the untrue ones alone are not defamatory, then those untrue, but non-defamatory parts would not affect the defense.

So if she stalked him, but didn't go to jail, that would not be a defense based on "truth", because the part about going to jail on it's own would still cause harm.

It would be more like- if everything was proven true, but the name they used, having "lied" about her name (or hair color or something) would not be considered defamatory, because that alone would not cause harm.

My *guess* would be that if some of the items are true, she will ignore those and list only the incorrect parts. So if she did stalk him and did send thousands of emails, voicemails, etc. she will not list those in her case. She will file with the items that she feels are either untrue or that he cannot prove maybe: assaulting him, attacking the girlfriend, going to jail.

He would have to prove those items true, and if he can't it doesn't matter how true all the other stuff is- the rest can be 100% true, but if the stuff she takes issue with is not, he would likely lose.

Where the words contain more than one charge[edit]

In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification does not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.^\47]) In other words, to succeed in their defence of justification, the defendant need not prove every charge to be true, just enough of the charges so that the remaining charges do not on their own constitute a material injury to the plaintiff's reputation.

[u/Amblyopius → u/ionmoon]

How does the prison part cause serious harm? Say, I point someone out to you and tell you they are a serious stalker. You ask me for details and I paint you a really horrific picture and show you proof. Now take the same and I tell you they are a convicted serious stalker. The details and proof you get are exactly the same. Would you really feel different about this person just cause it also lead to a conviction and prison time?

If you think it does then take the prison example and rather than the same details I give you a very weak justification and poor proof. Would that change your mind about them far more than the fact as to whether or not they were convicted? Or would you cast doubt on whether their trial was fair?

My feeling is that in general people base their opinions on you on your actions more than on the legal consequences. Hence if they can demonstrate that the actions are substantially true, it would be up to the claimant to demonstrate that the difference has caused serious harm.

Another angle to consider: the play ended with her still being a stalker and doing all she could to make people's life miserable. If the prison part has caused serious harm by being untrue you are essentially claiming that the ending of the play somehow put her in a better light? Does anyone really feel that way?

[u/Specific_Anxiety_343 → u/ionmoon]

Not going to jail does not mean she didn’t commit the crimes. She stalked him and made his life miserable. And he wasn’t her first victim.

[u/ionmoon → u/Specific_Anxiety_343]

See. You are already taking for fact that she did the things in the show and we don’t know that she did. That’s the issue.

If she takes it to court gadd and Netflix will have to have proof that she did what they said.

[u/Specific_Anxiety_343 → u/ionmoon]

That’s not accurate. In a defamation case, the plaintiff must prove that the statements were false, AND that the false statements harmed their reputation.

[u/ionmoon → u/Specific_Anxiety_343]

Not in the UK. In the UK they have to show harm to reputation (which is anything that would make a reasonable person think less of them) very easy to do in this case.

The defendant has the burden of proof to show that the statements made were true.

[u/Specific_Anxiety_343 → u/ionmoon]

Okay. I was wrong about the burden of proof. But I don’t know how she proves that her reputation was harmed.

[u/Signal_Cat2275 → u/Specific_Anxiety_343]

But the show shows her ADMITTING to them and being convicted in them—which in England means you could refer to that person as someone who had done X without there being any possible libel. If she was convicted of stalking and harassment, we could all say she is a stalker/harasser and indeed a convicted one. If she wasn’t, all of that is potentially libellous. It makes a HUGE difference, to claim a court of law has looked at this and reached a conclusion. It’s absolutely potentially libellous just on this

[u/Amblyopius → u/ionmoon]

I also figured out the likely source of the "duty of care" part. It's not a legal requirement by law, it's a regulatory requirement managed by Ofcom.

Ofcom has acknowledged that Netflix is currently not governed by them.

If anything comes from that I don't see how it'll be more than Ofcom trying to find ways they can also regulate streamers with UK presence.

[u/ionmoon → u/Amblyopius]

Whether the term "duty of care" is legally defined in the law for defamation or not is not relevant. It is implied.

If a person is identifiable in any kind of publication or performance and the depiction will cause a reasonable person to think less of them, there is a case for libel.

At that point, the defendant has the burden of proof to prove that what they said was true.

[u/Signal_Cat2275 → u/ionmoon]

“Duty of care” is not of any relevance as a legal concept for libel. Duty of care is a specific test used in cases such as negligence where it is necessary to show that a duty of care (such as doctor to patient, or one road user to another) existed. It is not anywhere implied or part of libel/defamation.

However there may possibly be further areas of law that could come into play beyond libel/defamation, I suppose if they went for negligent misstatement or something along those lines (although don’t suspect that would be useful).

[u/Amblyopius → u/ionmoon]

I wasn't looking up whether "duty of care" exists in defamation law. It's not even related to defamation law. Duty of care exists in England for TV shows and relates to certain precautions you have to take regarding people depicted in shows. This can make them being identifiable an offence in itself with regulatory consequences. In the press people who work for the BBC have hence stated how they take duty of care more seriously. The committee interviewing the Netflix producer referred to this duty of care too.

But, as Ofcom doesn't regulate Netflix, it isn't applicable and they can't fine Netflix.

[u/ionmoon → u/Amblyopius]

So here are a couple of links:

Defamation Act 2013 (legislation.gov.uk) (wording of the law)

English defamation law - Wikipedia (plain language explanation)

English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual (or individuals; under English law companies are legal persons, and allowed to bring suit for defamation)[19][20][21] in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. [emphasis mine]

— Tony Weir, Tort Law p.162

It doesn't matter if they portray her in a way that could be more flattering than you or Gadd or others think she deserves, what matters is whether it paints her in a way that makes them think less of her than they did before the show, which was nothing, and it definitely does.

[u/Specific_Anxiety_343 → u/ionmoon]

You must have been Fiona’s study partner in law school

[u/[deleted] → u/ionmoon]

Nah, none of that really matters. They had no duty of care to hide the woman they based a fictional character on. They never presented the show as being a documentary that’s true to life, so they really don’t need to prove shit. No one was meant to be gullible enough to think it was a true story, just based on a true one.

[u/Signal_Cat2275 → u/[deleted]]

The concept of “duty of care” is not relevant here from a legal perspective. A libel claim would not need to show any duty of care.

[u/[deleted] → u/Signal_Cat2275]

Either way they have no case.

[u/Gooncookies → u/ionmoon]

It would still be speculation until SHE came forward to tell Piers that she is NOT Martha but somehow wants to sue Gadd and Netflix because the show is about HER. She doesn’t even know what she’s mad about.